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TMI Blog2008 (5) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... ks Act, 1958 arising out of an order dated 12th May, 1979 by respondent No. 3 was dismissed. 3. Appellant is a company incorporated under the Companies Act, 1956. It manufactures whisky under the mark 'Peter Scot'. Manufacture of the said product allegedly was started by the company in May, 1968. An application was filed by it for registration of its mark before the respondent No. 3. Appellant was informed that its application was accepted and allowed to proceed with the advertisement, subject to the condition that the mark would be treated as associated with Reg. T.M. No. 249226-B. 4. A proceeding was initiated as regards registration of the trade mark. No opposition was filed by the respondent. Only one M/s. Mohan Meakins filed an opposition. The said trade mark was registered. 5. Respondent Nos. 1 and 2 came to know of the appellant's mark on or about 20th September, 1974. They filed an application for rectification of the said trade mark on 21st April, 1986. We may also notice that a suit for passing off has also been filed by the 1st respondent and others in the Bombay High Court being C.S. No. 1729 of 1987, which is stated to be still pending. 6. Appellant hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also unexplainable and inexcusable delay on the part of the respondents in filing the rectification application, the registered proprietors failed to file any evidence nor did they raise their little finger to rebut the evidence filed by the applicants/respondents. The plea of acquiescence/delay raised by the appellant was negatived on the ground that the plea of deceptive element in the impugned mark having neither been displaced nor rebutted by evidence on the part of the registered proprietors, the pleas of delay and acquiescence cannot be allowed in favour of the registered proprietors. 11. On the affidavit evidence filed on behalf of the respondents, respondent No. 3, although opined, that the same was not satisfactory but held the respondents' plea that the impugned registration contravenes Section 11 of the Act, stating: Nonetheless, the evidence gives an impression that some customers are being persuaded into thinking that PETER SCOT brand Whisky is also a Scotch Whisky. This is on account of the presence of two factors, namely - (1) the presence of the word Scot in the PETER SCOT mark and (2) the presence of some slogan on the Whisky bottles under PETER SCOT bra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce though justified to some extent does not help the appellant to avoid rectification. The statutory standard is not the actual confusion and deception but likelihood thereof. The term 'Scot' when used in association with whisky of non- Scottish origin is inherently capable of and is likely to cause confusion and deception. 16. Feeling aggrieved, an intra court appeal was preferred thereagainst by the appellant. A Division Bench of the High Court, as noticed hereinbefore, dismissed the said appeal. The Division Bench noticed at some length the submissions made by the parties to inter alia hold: We have carefully considered the abovesaid submissions made by the counsel on either side. In our considered view, the use of the device 'Lion Rampant' and the abovesaid description especially the description 'Distilled from the Finest Malt and Blended with the Choicest Whiskeys by Scotch Experts under Government Supervision' is definitely intended to lead the consumers to believe that the whiskey manufactured by the appellant is scotch whiskey. Though specific averments as above said have been made in the affidavit on Ian Barclay, the same have not been rebutted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the words 'Distilled from the Finest Malt and Blended with the Choicest Whiskies by Scotch Experts under Government Supervision' must be read with the word 'PRIDE OF INDIA' and the names of the appellant and the fact that it was manufactured at Bangalore. 6. The Division Bench of the High Court committed a serious error in so far as it failed to take into consideration that having regard to the provisions contained in Section 26 of the Geographical Indication of the Goods Act, 1999 (for short 'the 1999 Act'), the rights of trade marks which had been acquired through use in good faith were protected and thereby committed a serious error in not allowing the appellant to raise the said contention, on the premise that the same was being raised for the first time before it. Mr. Ashok H. Desai, learned Senior Counsel appearing on behalf of the respondent Nos. 1 and 2, on the other hand submitted :- (i) The findings of fact arrived at by the respondent No. 3 and as affirmed by the learned Single Judge and the Division Bench of the High Court should not be interfered with as they cannot be characterized as extraneous or perverse being based on no evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny law for the time being in force; or (c) which comprises or contains scandalous or obscene matter; or (d) which comprises or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India; or (e) which would otherwise be disentitled to protection in a court, shall not be registered as a trade mark. 27 - No action for infringement of unregistered trade mark.- (1) ... (2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. 56 - Power to cancel or vary registration and to rectify the register. - (1) On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto. (2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the court, to the Registrar or any party opposing the appeal to advance grounds other than those recorded in the said decision or advanced by the party in the proceedings before the Registrar, as the case may be, and where any such additional grounds are advanced, the applicant for registration may, on giving notice in the prescribed manner, withdraw his application without being liable to pay the costs of the Registrar or the parties opposing his application. (8) Subject to the provisions of this Act and of the rules made thereunder, the provisions of the Code of civil procedure, 1908 (5 of 1908), shall apply to appeals before a High Court under this Act 20. Although a large number of issues have been raised by the learned Counsel for the parties, we are of the opinion that the principal issues which arise for our consideration are: (i) Whether the delay on the part of the respondent Nos. 1 and 2 in filing the application for rectification would amount to acquiescence and/ or waiver? (ii) Whether the respondent No. 3 as also the learned Single Judge and the Division Bench of the High Court have failed to apply the correct tests and, thus, misdirected themselves in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s like Australia and United Sates of America. Ian Barclay in his affidavit stated: The first applicant received notice of the advertisement of the said mark PETER SCOT in the Trade Mark Journal when it received a routine report from 'Wildbore and Gibbons dated 20th September, 1974. Regrettably, the first Applicant did not lodge opposition with the time allowed. 27. Respondents, therefore, were well aware that the appellant had filed an application for registration. One of the questions which was raised before respondent No. 3 as also before the High Court was as to whether Article 137 of the Limitation Act, 1963 would apply to the rectification proceedings. Keeping in view the decision of this Court in Sakur v. Tanaji 1985(22)ELT327(SC) , evidently the same has to be rejected as the Registrar is not a court. 28. The submission of Mr. Nariman, however, is that the period of three years provided for should be taken to be the upper limit as an equitable jurisdiction is to be invoked. Our attention in this behalf has been drawn to the decision of this Court in State of Madhya Pradesh v. Bhailal Bhai and Ors.[1964]6SCR261 wherein it was held: It was necessary for the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly be decided in proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.' 29. We are unable to accept this submission. What would be the reasonable period in a given case would not depend upon the nature of action initiated before a statutory authority but also upon the purport and object of the statute. If the reliefs sought for before the superior courts are the same which could be sought for in a suit, the period of limitation specified for in the Limitation Act may be taken to be the criteria for consideration as to whether the same should be treated as a reasonable period, but not otherwise. In Bhailal Bhai and others (supra) a writ petition was filed for refund of the tax which was legally collected. It was essentially a money claim and in that context the aforementioned observations were made. 30. It was next contended that the appellant suffered a great prejudice by reason of delay as during the said period of 18 years the sales figures had gone up. Our attention has been drawn to a chart filed before the learned Single Judge on 6th July, 1988. Such a stand apparently had not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t supposed to know that there exist other marks which are registered or which would deceive or cause confusion with any other established mark. In a given case, the Registrar of Trade Mark may be aware thereof. But, in some cases, he may not be. It may, therefore, not be correct to contend that Section 11 of the Act prohibits the Registrar for registration of marks which would likely to deceive or cause confusion. 36. Indisputably, the purity of the Registrar is to maintain the register. Indisputably again, the public interest has to be kept in view. An application for registration has also to be considered keeping the public interest in view. What is therefore, necessary for the Registrar is to arrive at a conclusion as regards registration of mark, is as to whether having regard to the nature of the mark sought to be registered and the use thereof as also the class of bias, would be deceived or confused with the mark registered or not. 37. An application for rectification and correction of the register may be entertained if any of the grounds specified therein exists, viz., contravention or failure to observe the condition entered on the register or in relation thereto. An appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck as in the year 1968. It marketed two brand names, viz., Peter Scot and Red Knight. It is said to have been done for making the name attractive. It was a period when there were restrictions on import of Whisky. The custom duty was high. The price of a genuine Scotch Whisky was prohibitive for a large section of the consumers. Appellant applied for registration in the year 1971. 44. Ian Glen Barclay affirmed an affidavit in support of the respondents. He, in his affidavit which otherwise remained uncontroverted, admitted that the respondents were aware of registration of the mark through an advertisement made in a trade mark journal at the instance of the appellant as also a report received from Wildbore and Gibbons dated 20.09.1974. Respondent No. 1 had issued a notice. It also issued a notice in respect of an application filed by the appellant for registered proprietors trade mark 'Hogmanay' which led to withdrawal of the said application by the appellant before hearing. He also affirmed that there are provisional trade mark agencies about the trade marks advertisements in all the countries in classes 32 and 33 which inter alia have British or Scottish connotations. 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cqueen and Black Kilt) (Bombay High Court) 18. SWA v. Silver Oak Blenders and Bottlers Private Ltd. and Anr. (Windsor Club) (Bombay High Court). 19. SWA v. Maharashtra Manufacturing Corporation and Ors. (Black Skipper, White Scot & Salute India) (Delhi High Court) Decisions of Foreign Courts: 20. SWA v. Societed Importation e de Distribution des Grandes Marques (Judgment dated 23rd January, 1992 of the Commercial Court of Saint Etienne, France) 21. SWA and Anr. v. Pollini Liquori Spa (Judgment dated 19th March, 1980 passed by the Court of Rome, Italy) 22. SWA and Ors. v. Bartaon Distillery Co. (Judgment dated 12th November, 1973 passed by the United States Court of Appeal, Illinois) 23. SWA and Anr. v. Ewein Winery (M) Sdn. BhD [1999] 6 MLJ 280 (Malaysia) 46. The details of the cases aforementioned would clearly go to show that not only oppositions were made, but also actions were initiated against the persons who used the word 'Scot' as also against those who used the words 'Highland Chief, Scotch Terrier, Glenfiddich, Rare Blend', etc. 47. In Australia and United States of America, the respondent No. 1 initiated actions almost on the self-same cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court from the same judgment had not yet been decided. 44. I say that the 1st Applicant, having failed to lodge opposition to the 'Peter Scot' application within the prescribed period, was awaiting the decision of the Supreme Court before adopting proceedings against the registered proprietor for rectification of the mark PETER SCOT. However, in recent years, the 1st Applicant learned that various other parties were attempting to adopt the word 'SCOT' as part of their trade marks, and/or other marks with Scottish Connotations. therefore, the 1st Applicant decided that it could not afford to wait for the decision of the Supreme Court and proceedings were adopted by filing passing off actions which are referred to in the annexures referred to hereinabove, as well as the rectification proceedings against the registered proprietor. Thus, the delay is due to the aforesaid facts.' 50. Ex facie, the said explanation is wholly unacceptable. 51. Even before us, the result of the litigation before this Court has not been disclosed. When action had been taken by the respondent No. 1 in so many matters although one of the matters was pending before this Court, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question is not between the applicant on the one hand and the respondent on the other, but between public and the respondent. But the learned author further points cut at p. 272 that where the objection alleged to a mark is that it to the same as that of the applicant, or that it has such resemblance to his as to be calculated to deceive, it will be some evidence against the applicant, on whom the burden lies of showing that the registration was made without sufficient cause, if he had stood by and allowed the registered proprietor to use the mark objected to for a length of time, especially if no case of actual deception is proved. But the learned author also points out that in such a case two things have got to be considered; first, what was the reason of the delay in the application to expunge; and, secondly, whether any substantial injury has been caused by the delay to the person who has registered. therefore, the question of delay must be approached from this point of view whether the applicant stood by and thereby caused substantial injury to the respondent and the injury was so substantial that that injury would outweigh the interest of the public which the Court must consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that the application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle-whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial-requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour. It was held: I have to acknowledge my indebtedness to counsel on both sides for some illuminating arguments, but at the end of them I find myself entirely unpersuaded that the judge erred in any material respect. He concluded his judgment in this way on the question of estoppel: 'Of course, estoppel by conduct has been a field of the law in which there has been considerable expansion over the years and it appears to me that it is essentially the application of a rule by which justice is done where the circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge on the part of the plaintiff and prejudice suffered by the defendant is also a relevant factor. (See Spry on Equitable Remedies, 4th Edn., p. 433.) 65. In Halsbury's Laws of England, Fourth Edition, Vol. 16, para 1505, it is stated: Where a person has by words or conduct made to another a clear unequivocal representation of fact, either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself that another would, as a reasonable man, understand that a certain representation of fact was intended to be acted on, and that the other has acted on the representation and thereby altered his position to his prejudice an estoppel arises against the party who made the representation, and he is not allowed to aver that the fact is otherwise than he represented it to be. 66. Delay would be a valid defence where it has caused a change in the subject matter and action or brought about a situation in which justice cannot be done. 67. Mr. Desai relied upon Willmott v. Barber 15 Ch. D. 96 wherein it is stated: The equitable doctrine of acquiescence is founded on there having been a mistake of fact; can it be repelled by showing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1968 in USA, in paragraph 7 of memorandum of appeal it is stated as under: 7. The first appellant is the proprietor in India of other McFamily trade marks having prefix or suffix Mc/MAC and it has also applied for registration and most of them were registered during the pendency of the suit and the trademarks are used in India since October, 1996. From the above, it is clear that the plaintiffs are using their trade marks in India since October 1996. However, in the very next paragraph it is stated as under: 8. The first appellant was given approval on February 15, 1993 by the Government of India to operate a chain of restaurants in India. The second appellant was incorporated and registered with the Registrar of Companies on August 30, 1993 vide (Ex. P-30). It is thus clear that plaintiffs got registered in India in the year 1993 only. On the other hand, the defendant has been carrying on with its business since 1983. Having started business by the plaintiffs much later than the defendant in India, the plaintiffs cannot found fault with the defendant in using its trademark in its business.' 70. A contention is sought to be raised that the purported wrong committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents is self contradictory. We think that their stand is not fair. 76. We, therefore, in the peculiar facts and circumstances of this case, are of the opinion that action of the respondents is barred under the principles of acquiescence and/ or waiver. 77. The power conferred on the Registrar is discretionary in nature. In a given case, the Registrar may not exercise its jurisdiction. [See Kabushiki Kaisha Toshiba v. Tosiba Appliances Co. and Ors. MIPR2008(2)195 decided on 16th May, 2008] RE: ISSUE No. 2 78. Another principal question which arises for consideration is as to whether the use of the term 'Scot' would itself be a sufficient ground to form an opinion that the mark 'Peter Scot' is deceptive or confusing. Indisputably, the onus of proof therefore would be on the respondents. Whether they have discharged the said onus is the question? 79. The nature of a passing off action vis-a-vis the action for infringement of a registered trade mark may lead to ground of the same reliefs, but we, at the outset, may notice that in Modern Law Trade Marks by Morcom, it is stated: 'Passing off - the group or class type action - the necessary characteristics. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gards the market (s) and consumer knowledge, it was held: 33. There are two classes of consumer in the scotch whisky and bourbon markets: the involved consumer and the uninvolved consumer. The knowledge of these consumers may be obtained in several ways - including labels, customer salespeople, word of mouth and past experiences. 84. Noticing the details involving the manufacture of scotch whisky that it is ordinarily made from barley; it originates in Scotland ; if there are two forms of whisky : blended and malt ; it has various brands and its alcoholic content is at least 40 % by volume. It has further been noticed: 35. All the applicant's expert witnesses would fall within this class of consumer. Given the market is quite small, product distinction between scotch whisky and other products is more readily discerned by consumers in this class. They would also be aware that scotch whisky is sold in bottles and in pre-mixed drinks (scotch whisky products). It was also held: 38. The purchase of bourbon and scotch whisky products is not one of impulse. The habits of alcohol purchasers differs from those of purchasers of soft-drinks or sports drinks, who are usually teenag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all of the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks are used in a normal way as a trade mark for the goods of the respective owners of the marks. 67. That passage was cited with approval in Cooper Engineering Co. Pty. Ltd. v. Sigmund Pumps Limited (1952) 86 CLR 536 at 538 and in Woollen Mills at 658, where Dixon and McTiernan JJ described the comparative analysis as follows: In deciding this question, the marks ought not, of course, to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same. The effect of spoken description must be considered. If a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to be lacking in discernment. He would not be in a hurry to buy. He would not be likely to pay any attention to the presence of a common word like rain in the combination. That prefix already appears in other trademarks for goods of the same description sold on the Australian market such as Rainwell, Rainmaker, Rain Queen, and Rainbow. The learned register was right in holding that the only similarity between the two marks is the common prefix 'Rain' and that this similarity is not sufficient to create a reasonable likelihood of deception when the remaining portions of the marks are so different. (at p539). 89. Our attention has also been drawn to an order of a Delegate of the Registrar of Trade Marks in Re :- Opposition by Southcorp Wines Pty Ltd. to the registration of trade mark application number 749793 in the name of Kemeny's Food & Liquor Pty. Limited for the trade mark, comprising the words DEVIL'S RIDGE and device, in Class 33 wherein on the question of similarity of the words 'DEVIL'S LAIR' and 'DEVIL'S RIDGE' both being brand names of wines, it was observed: Despite Ms. Williamson's concerns about wines being purchased with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) assignment of mark, application, registration and good will of the related business. (d) laches and estoppel attributable to owner of prior mark and indicative of lack of confusion. 11. The extent to which applicant has a right to exclude others from use of its mark on its goods. 12. The extent of potential confusion, i.e., whether de minimis or substantial. 13. Any other established fact probative of the effect of use. As regards public interest, the learned Judge held: Whether offered in response to a right-to-use argument or against any of the evidentiary considerations listed above, citation of "the public interest" as a basis for refusal of registration is a bootless cry. [fn8] We need add little to the shattering of that shibboleth in the concurring opinion in National Distillers, supra, and in the dissents in Ultra-White, Zildjian and Continental Baking, supra. Writers and scholars listed in those reported opinions have also shown the fallacy in the notion that the Patent Office is somehow guarding the public against confusion when it refuses a registration. After a likelihood of confusion is found (and the case thus decided) citation of the public interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' its final conclusion. We need to be told and not be 'compelled to guess at the theory' the Board applied to compare its conflicting findings and decide likelihood of confusion. Without such explanation we are hard-pressed to review independently, as we must, whether the Board's ultimate conclusion is legally correct. In such circumstances, we cannot assure ourselves that the Board did indeed 'engage in reasoned decision- making. 93. It was observed: Because the Board in this case failed to 'supply a synthesis' of its conflicting findings that would enable us to 'discern the path' to its ultimate conclusion, I initially wondered whether its conclusion of no likelihood of confusion in this case was correct. As our per curiam opinion notes, however, it is perfectly lawful for the Board to determine in an appropriate case that one DuPont factor outweighs all others and thus disposes of the question of whether competing marks are confusingly similar. It was not immediately clear to me from the Board's opinion, however, that this is such a case. See Specialty Brands v. Coffee Bean Distributors, Inc. 748 F.2d 669, 671, 223 USPQ 1281, 1282 (Fed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l other companies under the names "American Extra Dry Gin with Lime Duet Plus", "Forbes Two in One Dry Gin and Lime", "Rainbow Gemlet Gin and Lime" etc. In my opinion, there is no possibility of any confusion in this case at all. 96. Yet again in Diageo North America, Inc. and Anr. v. Shiva Distilleries Ltd. a learned Single Judge of the Delhi High Court held as under: 14. So much for the second syllable. As regards the first syllable, I find that there is no similarity between SMIR and BRIS. Although the learned Counsel for the plaintiffs had submitted that all the letters are common except the letter and M in SMIR and the letter B in BRIS, this, to my mind, is of no consequence because the arrangement of the letters is entirely different, as is the phonetic and visual result. I also agree with the submission made by the learned Counsel for the defendant that the intending purchasers of the competing products are literate persons belonging to the affluent class of society and who would be in a position to easily distinguish SMIRNOFF from BRISNOFF particularly when the eyebrow device and the colour combination is sought to be given up by the defendant. The average person with im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strongly relied upon, makes such a distinction. Bollinger, J. (supra) was a case on demurrer. It was concerned with sale of Spanish Champagne. In that case, in paragraph 4 of the application, the applicant stated: Then in Para 4 they deny that this name 'Spanish Champagne' is a false description, and they continue: 'The defendants deny that the said section imposes any statutory duty on the defendants or any statutory duty owed by the defendants to the plaintiffs. Alternatively, if the said section does impose any such statutory duty the same is not actionable at the suit of any of the plaintiffs or at all'. 101. The court proceeded on certain assumptions which are: (1) the Plaintiffs carry on business in a geographical area in France known as Champagne; (2) The Plaintiffs' wine is produced in Champagne and from grapes grown in Champagne; (3) the Plaintiffs' wine has been known in the trade for a long time as 'Champagne' with a high reputation; (4) Members of the public or in the trade ordering or seeing wine advertised as 'Champagne' would expect to get wine produced in Champagne from grapes grown there; and (5) The Defendants a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to sales to persons who regularly buy wine) it is purchased on such occasions from time to time by many persons who are not in the habit of buying wine for consumption and are not educated in the nature or qualities of different kinds of wine. 106. Holding that 'Spanish Champagne' may lead to ordinary belief into thinking that wine so described was the real thing, it was observed: Moreover, when the case is tried in an atmosphere of educated persons, many of whom are well acquainted with the qualities of various wines, it may seem absurd that persons should be deceived by what may appear to be a transparent impersonation. It was argued indeed that Champagne was so well known that everyone except a trifling minority of ignorant persons (who were not to be considered, especially in regard to what was termed a luxury article) would not be deceived. It was held: Champagne, on the other hand, is a French word, and it is wrong if not dishonest to apply it to anything but the product of Champagne, the area round Rheims in France. Others must call themselves Sparkling Moselle, Sparkling Californian White, or what they please. There is some still champagne, a pleasant har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiderable body of evidence that persons whose life or education has not taught them much about the nature and production of wine, but who from time to time want to purchase Champagne, as the wine with the great reputation, are likely to be misled by the description 'Spanish Champagne. Something was said on the subject of the burden of proof. Well, burden of proof is something which may shift in the course of an action. It appears to me that when the plaintiffs have shown that a description used by the defendants contains an untruthful statement that a wine which is not Champagne is Champagne, they have gone some way to establishing their case, and the Court might require to be satisfied that such an untrue statement was so clearly qualified as to be not likely to mislead. But, however, that may be, I am satisfied on the evidence that a substantial portion of the public are likely to be misled. And as Lord Justice Lindley said in Slazenger & Sons v. Feltham & Co. (1889) 6 R.P.C. 531 at p. 537: One must exercise one's common sense, and, if you are driven to the conclusion that what is intended to be done is to deceive if possible, I do not think it is stretching the imagi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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